EMI Sneakily Trying To Pretend Many Of Its Artists Can't Reclaim Their Copyrights

from the but-of-course dept

We've talked plenty about the coming legal battles over "termination rights" in various works. If you're not familiar with it, under the 1976 Copyright Act, content creators have a guaranteed right to terminate any copyright assignments after 35 years. That is, if a musician assigned the copyright to a label, as is standard, they can take that copyright back after 35 years. This is not a right that an artist can give up. Even if they sign a contract saying they give up their termination rights, it doesn't matter. Those rights cannot be taken away from the artist under the law. The exception to termination rights, however, is if a work is classified as a "work made for hire." However, the definition of what qualifies as a work made for hire is very, very narrow:

A “work made for hire” is--

(1) a work prepared by an employee within the scope of his or her employment; or

(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

There are a lot of specific conditions there. If you're wondering how such an odd list was put together, some have suggested it was basically just who was in the room. Somewhat surprisingly, one of the main parties who apparently wasn't in the room were the major record labels. Notice that sound recordings aren't there, and you'd have to stretch the definition mightily to cover sound recordings. Of course, the labels have been freaking out about this for decades. Famously, back in 1999, Mitch Glazier, a Congressional staffer, snuck some language into a totally unrelated law about satellites to make sound recordings count as work for hire too. He allegedly did this in the middle of the night such that no one -- even the "authors" of the bill -- knew it was there until after the bill passed. This one time, the outcry (especially from musicians) was so loud, that Congress had to go back and repeal that section. Of course, by then, Glazier had jumped ship to a job at the RIAA making about half a million dollars. He's still at the RIAA where he's now the second in command. Remember that the next time anyone pretends the RIAA is about helping artists. Their number two guy tried to screw artists out of their copyrights.

Of course, that hasn't stopped the efforts by the record labels to still pretend that the copyrights they hold are "works made for hire." They've been testing out a few legal theories, none of which seem very strong, but many of which will soon be tested in court. Why now? While there have been a few lawsuits over this (especially in the comic book space), the key aspect of termination rights came into effect in 1978, with that 35 year window. 35 years after 1978 is... 2013. So, a battle is shaping up.

Michael Robertson, who has been involved in a long term legal fight with EMI, is calling attention to the fact that EMI seems to be trying to just declare that music made by bands signed to its labels are works made for hire. How are they doing this? Well, just by declaring that the songs are "made for hire" on the copyright registration. You can see one example of that on a Billy Idol copyright registration embedded below. But, simply declaring it as a work made for hire on the copyright registration is totally meaningless. It doesn't mean the work hits any of the qualifications under the law.

The RIAA has been trying to claim that any albums are really a "compilation" so they qualify as a "collective work" under the law, which does create a work-for-hire situation. But there are other conditions that need to be met, and it's unclear if those have been. Plus, the claim that an album is a "collective work" is a pretty weak one all around.

Either way, many artists probably don't even recognize that their works have been designated this way (or even what it means), so Robertson has been putting together a big list, and seeking artists on that list to proactively challenge the claims, rather than waiting until the 35-year window hits. There are some pretty big names on the list he's dug up already -- including the Beatles, the Beastie Boys, the Beach Boys, The Rolling Stones, Billy Idol, Coldplay, David Bowie, Duran Duran, Frank Sinatra, Iggy Pop, Janet Jackson, John Lennon, Katy Perry, Pink Floyd, Radiohead, Smashing Pumpkins and many, many more. Robertson is hoping at least someone on the list will go legal and claim their own works:

What I'm looking for is an artist who has the courage to stand up on this issue and claim their works, laying the groundwork for them and ALL artists who share their plight to take ownership in the near future and escape this slavery. (Rather like Curt Flood did battling to get free agency for baseball players: See The Curious Case of Curt Flood which should have been called the Courage Case of Curt Flood.)

Of course, some of this may get sorted out by the long list of coming lawsuits for those artists who have actually begun the process of trying to terminate the copyright assignment, starting with The Village People (though that's a weaker case, since the band itself was put together by the label). Either way, it's pretty ridiculous to see how far the labels are going to try to deny artists the ability to take back their copyrights, despite the law being pretty clear that they have that right.

Reader Comments

I don't understand why these "artists" think they deserve the money more than the labels. They merely composed, arraigned, and performed the music. The labels took all the economic risks so they should get all the rewards. If the so-called "artists" have already spent their advances, the labels shouldn't have to pay them twice.

Is anyone from the RIAA wants to hire me as a spokesperson, drop me an email. Thanks!

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You're giving the labels way too much credit. The labels aren't providing anything new; it's third party startups that license content and provide the viable alternatives. The music labels hated all of these new things and were fighting iTunes, Amazon, youtube and everybody else who was innovating. It took a long time for them to agree to sell licenses on reasonable terms, so the credit surely shouldn't go to the labels.

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The fact is, if the RIAA came up with an alternative to iTunes or Amazon, people wouldn't use it, simply because the RIAA has poisoned itself.

People wouldn't use it, but not because of the ties to RIAA. Look at all the people who continue to purchase music from RIAA member labels.

People wouldn't use it because it would suck. The labels are incapable of providing such a service in a useful way because they are unable to let go of the very things that make it suck: DRM, too expensive, limited catalog, etc.

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People didn't use it because it sucked.

FTFY.

The labels were trying to come up with digital music stores for a couple years before iTunes came along. Specifically, MusicNet and Pressplay, two huge pieces of shit that were laughably restrictive and backwards-thinking:

PressPlay charged $15 per month for the right to listen to 500 low-quality audio streams, download 50 audio tracks, and burn 10 tracks to CD. It didn't sound like an awful deal, until you found out that not every song could be downloaded, and that you couldn't burn more than two tracks from the same artist. MusicNet cost $10 per month for 100 streamed songs and 100 downloads, but each downloaded audio file expired after only 30 days, and every time you renewed the song it counted against your allotment.

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I remember those services, never used them but I remember them. Then, let's not forget other ventures into the same or related fields were met with hostility if not outright attempts to put down early on.

I can't remember the name of the site/service, but there was one between those label attempts and iTunes early days that was essentially a cyberlocker, but ONLY for your own mp3s. You were given a sizable chunk of space if memory serves me correctly and all you had to do was upload your own music. This was pre-broadband everywhere, so the only downside was that you were uploading using dial-up, which sucked. Lol.

That site/service ended up being sued into oblivion. I'm thinking it was something like mp3.com (but I might be wrong). Which of course, for those keeping score, was the first true shot across the bow on the part of the labels against anyone making any attempts at innovation. It was also, when looked at from a later date, the event that set cloud storage behind a decade. An event that is happening again, oddly enough, due to the labels.

For those, not you Karl, who claim "well if they weren't doing something illegal, they wouldn't change the way they run things", I say "Who says they're changing the way they run? They're not, what they are changing is they're cutting off the United States and it's citizens from using their services. A smart person would see that it's not because of wrongdoing on their part, but because when they see that they will be blamed for any misuse by their users, whose actions can't be governed and controlled 24/7/365, and have their assets seized, homes raided, etc. they realize it's better to lose a market than risk such trouble." Not that it'll do much good in the long run. Overreaching has become the new thing to do in the U.S. Why innovate when you can legislate? At the end of the day, the problems you're having will still be there, because rather than deal with the root cause of the problem (bad service and all the other things we mention... lack of selection, lack of formats, DRM, inconvenience when purchasing, etc) you're dealing with symptoms (piracy) caused by the main ailment (your own fuck-ups and inability to think beyond previously determined and set ways/methods).

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I can't remember the name of the site/service, but there was one between those label attempts and iTunes early days that was essentially a cyberlocker, but ONLY for your own mp3s. [...] That site/service ended up being sued into oblivion. I'm thinking it was something like mp3.com

"This ruling means that all entitled parties will participate in income generated by Net uses of music in business settings," Kay wrote in an email. "That insures the professional creation and delivery of new music, which is definitely in the consumer's best interest."

Yeah, how'd that work out?

I remember this vividly, because I (like thousands of other artists) used MP3.com to distribute my own music. I think I still have one of their tote bags kicking around somewhere.

Admittedly, their distribution model sucked. They would sell "D.A.M. CD's" that were just burned from 128K MP3 files, so the sound quality was terrible; plus the packaging was all the same (2-panel CD cover & tray), you couldn't do extras, there was no tiered pricing scheme...

Still, if it had been allowed to survive to modern times, it would have been a godsend to indie musicians. Yet another example of how the major labels' quashing of technology hurts all musicians.

As if 35 years isn't already a ridiculously long period of time to profit off an artist's work. I bet most artists wouldn't even care to reclaim their rights if they had a fair arrangement with the label. The problem only arises when artists realize that they got a rotten deal - and it takes them 35 years to get out. So by actively seeking to prevent artists from ever being able to reclaim their rights the labels basically admit that a deal with them is a deal with a shyster.

Non-waiveable rights rock. And he distinction between independent contractors and employees, has an insane amount of jurisprudence behind it across multiple legal areas. Usually it's analyzed by the "looks like a duck" method; and how it's "characterized" by the parties is disregarded. We don't care what you call it, it looks like a duck.

Billy Idol as employee? Not a duck. I don't see the labels getting around it in even the non-normative real world, because anything other would threaten too much old, solid law. Groovy.

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Ha! I've actually seen that happen. The argument that the IP was X's because the creator was an employee, brought potential tax liability on X of more than the IP at issue was worth. Gotta love forward thinkers.

not an EMI-specific practice

Unfortunately, this is a well-established and industry-wide practice that has existed for years. That doesn't mean that it's going to stand up in court, but just that it's not limited to EMI. I've even seen indie contracts with this clause in them.

WOAH WOAH WOAH, I did not spend millions of dollars getting copyright extended to life plus 70 just so the fucking creator could get control of it after a measly 35 years! We force them into these weaselly contracts for a reason you know.

Maybe I can track down some of those lawyers that helped disney screw their creative talent over.

something glad that the politicians and law makers are introducing more and more, harsher and harsher copyright bills that are helping the various labels assist their artists get their work back and start to earn some money for themselves. where on Earth would they have been without this?

if the artists are getting ripped off it is THEIR fault for signing with the label. NO QUESTION about it. They were STUPID to sign on with the label. It is THEIR fault for signing the contract - it does not MATTER if the contract changes /after/ they signed it.

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notdarryl you are such an idiot,,,,,,,,,

if you commenting is getting mocked it is YOUR fault for posting a comment. NO QUESTION about it. You were STUPID to post a comment. It is YOUR fault for posting a comment - it does not MATTER if your comment changed /after/ you posted it.

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notdarryl you are such an idiot,,,,,,,,,

if you commenting is getting mocked it is YOUR fault for posting a comment. NO QUESTION about it. You were STUPID to post a comment. It is YOUR fault for posting a comment - it does not MATTER if your comment changed /after/ you posted it.

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notdarryl you are such an idiot,,,,,,,,,

if you commenting is getting mocked it is YOUR fault for posting a comment. NO QUESTION about it. You were STUPID to post a comment. It is YOUR fault for posting a comment - it does not MATTER if your comment changed /after/ you posted it.

Coldplay?

The impending termination rights are the reason they tried to sneak in audio recordings as a 'work for hire.' Here's hoping that several artists opt to reclaim the rights to their works and that it has a domino effect. No point in going down with a sinking ship.

A key point here is that ALL of the sites examples of work for hire are commissioned submissions to be used in as part of larger work being created by another where that larger work should NOT work for hire. Even if you can claim that the individual tracts are part of the larger album, the labels usually commission the album not the individual tracts for it and when the artist produces the entire album the copyrights on the album should still be able to be returned to the original artist and the copyrights on the tracts along with it. In the case of a guest performer featured on an individual tract that seems like that could be work for hire but only for the featured artists part even though that scenario isn't specifically mentioned in the law. Since the law specifically says "such as..." (ie. "like") the following items, it seems to me that although it's more difficult to prove that music tracts could be work for hire, I have to disagree with Mike on the assertion that it would HAVE to be specifically mentioned in the law. You should only have to prove that the situation is sufficiently "like" one of the mentioned examples. More difficult to prove? Yes. Impossible? No.

Sure they are works for hire. Its normal for people to given massive loans by the company they are contracted to for the express purpose of completing the job, then have to use that money to pay the company to help them do it. Then get that company to promote their work and pay them for that too. Then have to get more loans from them to go out and self promote as well. That is how all contract operators work.

Response to: Anonymous Coward on Mar 3rd, 2012 @ 7:37am

Work for hire is specifically to address CONTRIBUTIONS to a larger work by MULTIPLE INDIVIDUALS and handle the ownership of copyright of the contributions. Without multiple contributors, you can't have work for hire. Just because something is commissioned does not make it work for hire.

Response to: Anonymous Coward on Mar 3rd, 2012 @ 7:37am

Work for hire is specifically to address CONTRIBUTIONS to a larger work by MULTIPLE INDIVIDUALS and handle the ownership of copyright of the contributions. Without multiple contributors, you can't have work for hire. Just because something is commissioned does not make it work for hire.

Response to: Anonymous Coward on Mar 3rd, 2012 @ 7:37am

Work for hire is specifically to address CONTRIBUTIONS to a larger work by MULTIPLE INDIVIDUALS and handle the ownership of copyright of the contributions. Without multiple contributors, you can't have work for hire. Just because something is commissioned does not make it work for hire.

The standard major label contract makes it clear that all recording expenses come out of future royalties. That's why they call it an "advance" - so they can't have it both ways. If the record doesn't sell enough, the artist actually OWES the label. That's not work for hire.

An artist that hires a session musician to play orchestral parts, THAT is a work for hire. I'm looking forward to seeing Paul McCartney get his portion of the Beatles portfolio back.

Response to: Christopher Bingham on Mar 3rd, 2012 @ 11:49am

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100% correct. I'd like to add that soundtrack composers for film, TV and video games are regarded as works for hire, i.e. they're commissioned to do a work and the parent company owns the rights to said works. There may be a few exceptions, such as licensing a song (synchronization), but that's generally how it works.

That some of the top artists of the past decade have to engage the labels in court due to their absolute refusal to relinquish ownership of property which isn't theirs to begin with is disgusting. What's more, the labels' brazen attempt to ignore the law and redefine their contractual agreements is outright insulting. And then they turn around and call people thieves... Amazing. This is how organized crime syndicates work.

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The real question here then is is the studio considered the creator (ie artist) that created the collaborative work in the case of a motion picture or would that be the director? Because if it's the director (as it should be since the studio really didn't "create" anything (ie only put up the money to have it created) then it would stand to reason that the director would not be work for hire and could reclaim the copyrights from the studio if he so chooses.

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"The real question here then is is the studio considered the creator (ie artist) that created the collaborative work in the case of a motion picture or would that be the director? Because if it's the director (as it should be since the studio really didn't "create" anything (ie only put up the money to have it created) then it would stand to reason that the director would not be work for hire and could reclaim the copyrights from the studio if he so chooses."

If you sit through the end credits (as I do), you'll see a notice saying "(Insert studio name here) is the author for purposes of copyright" or some such similar phrase.

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Just as Mike said in the article, just because they write something in the contract or in the credits of the film for that matter doesn't make it a legal truth. The question then becomes what constitutes "creation" of a work paying for it? If so then nothing is ever "commissioned" if paying for it is creation of it. So what involvement other than paying for the creation of a film entitles a studio to claim it created it?

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The only other argument I could see as valid for who is the creator of the overall work and thus whether termination rights exist or not is that the person with the initial vision for making the film would be the creator. So if this definition holds and the person with the initial vision for creating the film was an employee of the studio then a director was hired to create the film, since the original creator was an employee of the studio, termination rights would not exist.

However by the same definition, if a director or writer had an idea for a film and pitched it to a studio to fund making it and promote it afterwards, then the director or writer would be the creator and thus termination rights would exist.

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Often times the audio track that is used in the film was recorded previously to appear on an album by the recording artist first an the just licensed to be used in the film. That wouldn't be work for hire either because the audio track existed prior to appearing in the film and wasn't commissioned specifically for its use in the film.

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"The real question here then is is the studio considered the creator (ie artist) that created the collaborative work in the case of a motion picture or would that be the director? Because if it's the director (as it should be since the studio really didn't "create" anything (ie only put up the money to have it created) then it would stand to reason that the director would not be work for hire and could reclaim the copyrights from the studio if he so chooses."

In the case of major motion pictures, the movie studio owns the rights. Unlike a deal between label/artist, directors, actors, composers, et al. are not expected to recoup the studios out of their own paychecks. In effect, they are hired hands being paid to perform a service. On the other hand, major labels front money to an artist which they are then expected to pay back out of their meager percentage take, while the label/distributor (often one and the same) pocket the difference. This is completely lopsided in that success is more of less dependent upon whether or not the label decides to actively promote the artist.

"Often times the audio track that is used in the film was recorded previously to appear on an album by the recording artist first an the just licensed to be used in the film. That wouldn't be work for hire either because the audio track existed prior to appearing in the film and wasn't commissioned specifically for its use in the film."

I never said that it was. It's a 'synchronization,' just like a song licensed for use in a commercial. Neither circumstance modifies the original contractual agreement between artist/label in any way.

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What about the situation where a director approaches a studio with a project for backing as opposed to a studio hiring a director to handle a project it already wants to make? It would seem that the former would not be work for hire but the latter would.

And I didn't mean to imply that you said anything. I was merely adding a comment on a common scenario for clarification. I think we are in agreement on the interpretation of these scenarios.

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"What about the situation where a director approaches a studio with a project for backing as opposed to a studio hiring a director to handle a project it already wants to make? It would seem that the former would not be work for hire but the latter would."

Backing in what way, financially? If a director/creator had all the funding and resources in order to create the desired project, the only benefit I can think of a studio could offer would be distribution and promotional services. The studio might stipulate that the creator grant them rights over the work in return for such support, in which case the creator would have to weigh the benefits vs risks.

Movie studios, like most businesses, put their own interests -- financial gain and control -- above all others. There are stark differences between contractual agreements with a movie studio and a record label. If a movie studio invests capital in a project, typically they're the ones paying the worker's salaries, regardless of whether or not the film is a financial success. Therefore, the people who work on such projects fall within the legal definition of a 'work for hire' -- they're being paid to do a job.

Conversely, the major labels' contract stipulates that an artist recoup the label's financial investment, an altogether different situation than the movie studios. Here the artist is not being "paid to do a job" but rather is fronted money, much like a bank, and is expected to pay it back. All the while the label is hoarding the lion's share of profits and none of their cut factors into the artist's debt. Worse still, they are especially well-endowed when it comes to *ahem* creative book-keeping.

'Work for hire' has already been defined and no amount of fancy contractual editing by the record labels can change this fact. If the artists want ownership of their works returned to them and refuse negotiations, the labels' only recourse is to attempt to strip them of ownership via a legal battle. Let this serve as a dire warning to artists out there: steer clear of signing along the dotted line of indentured servitude at all costs.

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Fundamental to the very concept of copyright for all works is that regardless of the contractual or financial situation surrounding their creation, INITIALLY the creator automatically owns the copyright when the work is created. It is just that due to the contractual obligation, the copyright is automatically transferred to the employer, publishing company, studio, label or whatever. This is why photographers don't have to register images to establish copyright - it's automatic. This is also what enables termination rights. You can't RECLAIM rights that were never yours to begin with. The financial details have nothing to do with this. If the creator is an employee or was contracted as work for hire the creator can't reclaim it otherwise they can. So the only issue at debate here is with movies is who is the creator of the overall work? I would argue that it would be the director and not the studio as the studio generally isn't involved in the creation process.

I'm surprised nobody mentioned this ...

If these artists are 'employees' then they should have gotten emplyee benefits, including insurance, workmans' comp, minimum wage,etc. If the labels are claiming that they truly ARE employees, and they never got paid for their works through sleezball accounting, then it seems like several federal offices could step in. How about OSHA - for those late into the night recording sessions?